2021 Colorado Code
Title 1 - Elections
Article 40 - Initiative and Referendum
§ 1-40-111. Signatures - Affidavits - Notarization - List of Circulators and Notaries

1. Any initiative or referendum petition shall be signed only by registered electors who are eligible to vote on the measure. Each registered elector shall sign his or her own signature and shall print his or her name, the address at which he or she resides, including the street number and name, the city and town, the county, and the date of signing. Each registered elector signing a petition shall be encouraged by the circulator of the petition to sign the petition in ink. In the event a registered elector is physically disabled or is illiterate and wishes to sign the petition, the elector shall sign or make his or her mark in the space so provided. Any person, but not a circulator, may assist the disabled or illiterate elector in completing the remaining information required by this subsection (1). The person providing assistance shall sign his or her name and address and shall state that such assistance was given to the disabled or illiterate elector.
2. 1. To each petition section shall be attached a signed, notarized, and dated affidavit executed by the person who circulated the petition section, which shall include his or her printed name, the address at which he or she resides, including the street name and number, the city or town, the county, and the date he or she signed the affidavit; that he or she has read and understands the laws governing the circulation of petitions; that he or she was a citizen of the United States and at least eighteen years of age at the time the section of the petition was circulated and signed by the listed electors; that he or she circulated the section of the petition; that each signature thereon was affixed in the circulator's presence; that each signature thereon is the signature of the person whose name it purports to be; that to the best of the circulator's knowledge and belief each of the persons signing the petition section was, at the time of signing, a registered elector; that he or she has not paid or will not in the future pay and that he or she believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix his or her signature to the petition; that he or she understands that he or she can be prosecuted for violating the laws governing the circulation of petitions, including the requirement that a circulator truthfully completed the affidavit and that each signature thereon was affixed in the circulator's presence; and that he or she understands that failing to make himself or herself available to be deposed and to provide testimony in the event of a protest shall invalidate the petition section if it is challenged on the grounds of circulator fraud.
   2. 1. A notary public shall not notarize an affidavit required pursuant to subsection (2)(a) of this section, unless: (b) (I) A notary public shall not notarize an affidavit required pursuant to subsection (2)(a) of this section, unless:
         1. The circulator is in the physical presence of the notary public; and
         2. The circulator has dated the affidavit and fully and accurately completed all of the personal information on the affidavit required pursuant to subsection (2)(a) of this section.

      2. An affidavit that is notarized in violation of any provision of subparagraph (I) of this paragraph (b) shall be invalid.
      3. If the date signed by a circulator on an affidavit required pursuant to paragraph (a) of this subsection (2) is different from the date signed by the notary public, the affidavit shall be invalid. If, notwithstanding sub-subparagraph (B) of subparagraph (I) of this paragraph (b), a notary public notarizes an affidavit that has not been dated by the circulator, the notarization date shall not cure the circulator's failure to sign the affidavit and the affidavit shall be invalid.

   3. The secretary of state shall reject any section of a petition that does not have attached thereto a valid notarized affidavit that complies with all of the requirements set forth in paragraphs (a) and (b) of this subsection (2). Any signature added to a section of a petition after the affidavit has been executed shall be invalid.

3. 1. for any protest that includes an allegation of circulator fraud that is pled with particularity regarding:
      1. Forgery of a registered elector's signature;
      2. Circulation of a petition section, in whole or part, by anyone other than the person who signs the affidavit attached to the petition section;
      3. Use of a false circulator name or address in the affidavit; or
      4. Payment of money or other things of value to any person for the purpose of inducing the person to sign the petition.

   2. Upon the finding by a district court or the secretary of state that the circulator of a petition section is unable to be deposed or to testify at trial or a hearing conducted by the secretary of state because the circulator has died, become mentally incompetent, or become medically incapacitated and physically unable to testify by any means whatsoever, the provisions of paragraph (a) of this subsection (3) shall not apply to invalidate a petition section circulated by the circulator.

4. The proponents of a petition or an issue committee acting on the proponents' behalf shall maintain a list of the names and addresses of all circulators who circulated petition sections on behalf of the proponents and notaries public who notarized petition sections on behalf of the proponents and the petition section numbers that each circulator circulated and that each notary public notarized. A copy of the list shall be filed with the secretary of state along with the petition. If a copy of the list is not filed, the secretary of state shall prepare the list and charge the proponents a fee, which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of the preparation. Once filed or prepared by the secretary of state, the list shall be a public record for purposes of article 72 of title 24, C.R.S.

History. Source: L. 93: Entire article amended with relocations, p. 683, § 1, effective May 4; (2)(a) amended, p. 2049, § 1, effective July 1. L. 95: (2) amended, p. 433, § 9, effective May 8. L. 2007: (2) amended, p. 1982, § 34, effective August 3. L. 2009: (2) amended and (3) and (4) added, (HB 09-1326), ch. 258, p. 1172, § 9, effective May 15. L. 2018: (2)(a) amended, (HB 18-1145), ch. 113, p. 807, § 2, effective August 8. L. 2021: (2)(b)(I) amended, (SB 21-250), ch. 282, p. 1668, § 71, effective June 21.

1. This section is similar to former § 1-40-106 as it existed prior to 1993, and the former § 1-40-111 was relocated to § 1-40-101.
2. Section 85 of chapter 282 (SB 21-250), Session Laws of Colorado 2021, provides that the act changing this section applies to elections conducted on or after June 21, 2021.

For the legislative declaration in HB 18-1145, see section 1 of chapter 113, Session Laws of Colorado 2018.

Analysis

• I. GENERAL CONSIDERATION.
• II. CONSTITUTIONAL CONSTRUCTION.
• III. REQUIRED DATA.
• IV. SIGNATURES.
• V. CIRCULATORS.

Law reviews. For comment, “Buckley v. American Constitutional Law Foundation, Inc.: The Struggle to Establish a Consistent Standard of Review in Ballot Access Cases Continues”, see 77 Den. U. L. Rev. 197 (1999).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Section 1-40-106 (2) (now this section) prohibited the court from validating the signatures collected for an initiative when its title and submission clause were found to be misleading. Matter of the Proposed Initiated Constitutional Amendment Concerning Limited Gaming in the City of Antonito, 873 P.2d 733 (Colo. 1994).

Section 1-40-106 must be construed so as to allow qualified electors of the ages of eighteen through twenty to participate in the initiative process. Colo. Project-Common Cause v. Anderson, 178 Colo. 1 , 495 P.2d 220 (1972).

Liberal construction must be given to statutes implementing initiative provisions of constitution. Billings v. Buchanan, 192 Colo. 32 , 555 P.2d 176 (1976).

The purpose of the required data is that those interested in protesting may be apprised of that which will enable them conveniently to check the petition. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934).

And therefore, the careful entry of the residence (not mere post-office address) of each person with each name should be made at the time of the signing, and should show, in all cities and towns where there are street numbers, the street number of the residence of the signer. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).

This is a very important provision. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).

And it is the most efficient provision against fraud in this section. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).

Also it is essential to an intelligent protest and should always be carefully obeyed. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).

And the entry of the date of the signature is only less important. Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).

But both residence and date of the signature are mandatory by the provisions of § 1 of art. V, Colo. Const.Elkins v. Milliken, 80 Colo. 135 , 249 P. 655 (1926).

Therefore, signatures to a petition, where the signer's residence can be identified by street and number, should be rejected if these are lacking. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).

But the residence and date of signing may be added by a person other than the petitioner. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934).

Because neither the constitution nor this section specifically requires the signer to add his address and date of signing. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934).

Such additions, although preferably done by the petitioner, may be done by another. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934).

And failure of signers to insert residences is not ground for rejection. There is nothing in the constitution, statutes, or decisions justifying the rejection of signatures solely by reasons of the failure of signers, under the circumstances prevailing, to insert in the petition streets and numbers of their residences. Case v. Morrison, 118 Colo. 517 , 197 P.2d 621 (1948).

And also omission of year from date petition signed was held immaterial. In considering the sufficiency of a petition, the fact that the year is omitted from the date upon which a signer affixed his signature to the petition is immaterial, where the document as a whole conclusively establishes the year in which the petition was signed. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934), distinguishing Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).

Moreover, until filed with the secretary of state, a petition for the initiation of a law is in no sense a public document, and may be checked and corrected by the sponsors before filing. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934).

Computation of residency applicable for municipal referendum. Computation of residency by looking to the date of signature and then to the date of the prospective election to determine whether the durational requirement is satisfied is applicable to a municipal referendum residency requirement. Francis v. Rogers, 182 Colo. 430 , 514 P.2d 311 (1973).

Initiative petition signatures must be collected in person even when a disaster emergency has been declared in response to a global pandemic. Provisions of article V, section 1 (6), of the state constitution requiring that petitions be signed by registered electors in their proper persons and that signatures be verified by another registered elector must be read together to require in-person signing in the presence of a petition circulator. The Colorado Disaster Emergency Act authorizes the governor to suspend certain types of statutes, rules, and regulations during a declared disaster emergency but does not authorize the suspension of constitutional provisions, and the governor therefore cannot issue an executive order allowing initiative petition signatures to be collected by mail or email. Ritchie v. Polis, 2020 CO 69, 467 P.3d 339 .

Where two or more signatures on a petition are in the same handwriting, all such must be rejected. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).

So also where sections of a petition have been tampered with after the signatures have been affixed thereto, they must be rejected. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).

Newspaper pages cut and reassembled for inclusion in petition. Where newspaper pages, on which were printed petition forms in three parts which were used to secure signatures in support of a petition to place a proposed constitutional amendment on the ballot, were cut into the separate parts and then reassembled and bound together for inclusion in the petition presented to the secretary of state, this procedure did not invalidate the signatures since there was no showing or intimation that the separation of the forms involved any alteration, irregularity, or fraud. Billings v. Buchanan, 192 Colo. 32 , 555 P.2d 176 (1976).

Since there was little in the record to support plaintiffs' claim that the affidavit requirement in subsection (2) significantly burdens political expression by decreasing the pool of available circulators, exacting scrutiny is not required. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff'd on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Given the responsibility circulators bear in ensuring the integrity of elections involving ballot issues, and given the fact that the affidavit requirement is a reasonable, nondiscriminatory restriction, subsection (2) is not unduly burdensome and unconstitutionally vague. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff'd on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

The requirements of this section are justified by the state's compelling need for the names and addresses of the circulators and the requirement is sufficiently narrowly drawn to be constitutional. The affidavit requirement has the primary purpose of providing the opportunity for an adequate hearing on the sufficiency of the signatures for the petition for other matters relevant to placing the measure on the ballot. There is a compelling necessity to be able to summon circulators to provide testimony at a hearing on challenges to the validity of the signatures and for other matters relevant to the petitioning process. Am. Constitutional Law Found., Inc. v. Meyer, 870 F. Supp. 995 (D. Colo. 1994 ), aff'd on other grounds, 120 F.3d 1092 (10th Cir. 1997), aff'd on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

Subsection (2)(b)(I)(C) does not severely burden first amendment rights. Because subsection (2)(b)(I)(C) does not contain a residency requirement, it does not restrict non-resident circulators from signature-gathering activities. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012 ).

“Read and understand” requirement is a formal requirement to which the court will not apply strict scrutiny in a constitutional challenge: Although requirements limit the power of initiative, the limitation is not substantive. Loonan v. Woodley, 882 P.2d 1380 (Colo. 1994).

“Read and understand” requirement enhances the integrity of the election process and does not unconstitutionally infringe on the right to petition. Loonan v. Woodley, 882 P.2d 1380 (Colo. 1994).

“Read and understand” requirement is not unconstitutionally vague. Loonan v. Woodley, 882 P.2d 1380 (Colo. 1994).

Subsection (2) is sufficiently definite because it explicitly endorses the lay circulator's own interpretation of “understanding”, and does not invest law enforcement officers with sweeping, unrestrained discretion. Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997), aff'd on other grounds, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).

The requirement in subsections (2)(a) and (3)(a) that circulators make themselves available in the event of a protest does not burden first amendment rights. The state has a strong interest in maintaining the integrity of the petition process. Independence Inst. v. Gessler, 869 F. Supp. 2d 1289 (D. Colo. 2012 ).

Omission of required affidavit language demonstrated that circulators of the petition did not read and understand the statute as required by this section. Loonan v. Woodley, 882 P.2d 1380 (Colo. 1994).

The circulator of a petition for the initiation of a measure can make a positive affidavit that a signature thereon is genuine by reason of its having been written in his presence or through his familiarity with the signer's handwriting, the pertinent law requiring only that the affidavit state that each signature is the signature of the person whose name it purports to be. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).

But this section makes it a felony for one person to sign for another. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).

And a circulator who makes oath to the genuineness of such signatures, if done with knowledge, is guilty of perjury. Miller v. Armstrong, 84 Colo. 416 , 270 P. 877 (1928).

Since “purport” means to have the appearance or convey the impression of being. Brownlow v. Wunch, 103 Colo. 120 , 83 P.2d 775 (1938).

And in a proceeding to determine the sufficiency of a petition, the contention that portions of the petition, although not vulnerable otherwise, should be discarded because circulators, as shown by other sections, had so deported themselves that they were unworthy of belief, overruled. Haraway v. Armstrong, 95 Colo. 398 , 36 P.2d 456 (1934).

Substantial compliance is the standard the court must apply in assessing the effect of the deficiencies that caused the district court to hold petition signatures invalid. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).

Discrepancies in the day or month of the circulator's date of signing and the date of notary acknowledgment render the relevant petitions invalid absent evidence that explains the differences in question. Petitions containing such discrepancies do not provide the necessary safeguards against abuse and fraud in the initiative process. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).

Absent evidence that the change in signing was the product of the signing party, changes to a circulator's signing date do not represent substantial compliance with subsection (2) and serve to invalidate the signatures within the affected petitions. The district court properly held invalid signatures that were tainted by a change in the circulator's date of signing, where the date of signing was not accompanied by the initials of the circulator or other evidence in the record establishing that the circulator made the change. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).

The district court erred in invalidating petitions that did not contain a notary seal. The purpose of the notarized affidavit provision in subsection (2) was substantially achieved despite the proponents' failure to secure a notary seal on petitions affecting 92 signatures. The record contains evidence that the affidavits with omitted seals were notarized by individuals with the same signature and commission expiration found on other affidavits with proper seals. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).

The initiative proponents substantially complied with the requirements for a circulator's affidavit even though the circulator did not include a date of signing. When the circulator simply omits the date of signing, there is no reason to believe that the affidavit was not both subscribed and sworn to before the notary public on the date indicated in the jurat. Fabec v. Beck, 922 P.2d 330 (Colo. 1996).